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Mitchell v. Alliance Compressors

Court of Appeals of Louisiana, Third Circuit

May 1, 2019



          George A. Flournoy Flournoy Law Firm Counsel for Plaintiff/Appellant: Elaine Mitchell

          Sam N. Poole, Jr. M. Allison Johnson Gold, Weems, Bruser, Sues & Rundell Counsel for Defendant/Appellee Alliance Compressors, LLC

          Court composed of Elizabeth A. Pickett, Phyllis M. Keaty, and Jonathan W. Perry, Judges.


         In this workers' compensation case, Elaine Mitchell appeals a judgment that granted summary judgment in favor of her former employer, Alliance Compressors (Alliance), and dismissed her claims against it. Finding that Alliance met its burden of proving the absence of any genuine issues of material fact such that it was entitled to judgment in its favor as a matter of law, we affirm.


         Mitchell filed a Form 1008 Disputed Claim for Compensation (1008) against Alliance on January 9, 2017, alleging that she sustained a workplace injury on December 5, 2016, when her right hand got caught in a machine. In the 1008, Mitchell listed the following items as being in "BONA-FIDE DISPUTE:"

a. Extent and duration of disability and entitlement to indemnity benefits
b. Non-payment or incorrect or untimely payments of TTD benefits and/or SEB
c. Failure to furnish and/or provide authorization for proper medical treatment
d. Non-payment and/or untimely payment of medical and travel related expenses
e. Failure to furnish copies of reports of employer selected physicians within 30 days after written request therefor
f. Failure to provide vocational rehabilitation
g. Wages
h. Discontinuance of benefits
i. Penalties and attorney's fees in accord with LSA 23:1201 and/or:1125 and/or:1142 as a result of b., c., d., e., f., or h.
j. Legal interest on all awards from appropriate date

         After prior trial dates had been continued six times, without opposition, by both Mitchell and Alliance, the matter was refixed for an August 9, 2018 trial. In advance of the trial, Alliance filed a Motion for Summary Judgment on June 5, 2018, seeking to have Mitchell's claims against it dismissed. The workers' compensation judge (WCJ) scheduled Alliance's motion for a July 5, 2018 hearing. On July 3, 2018, a flurry of motions was filed. Mitchell filed a Motion to Continue or, Alternatively, Motion to Refer to the Merits, which sought to require Alliance to show cause on July 5, 2018, why Mitchell's motion to continue should not be granted; the WCJ signed the order submitted by Mitchell which resulted in her motion to continue being set on the same day as the summary judgment hearing. Mitchell also attempted to file a pleading titled Opposition to Motion Fo [sic] Summary Judgment.[1] In response, Alliance filed a memorandum in opposition to Mitchell's motion to continue, as well as a response to Mitchell's substantive opposition to its motion for summary judgment.

         Neither Mitchell nor her counsel appeared at the July 5, 2018 hearing. The WCJ orally denied Mitchell's motion to continue or refer to the merits, and granted summary judgment in favor of Alliance, dismissing Mitchell's claims against it with prejudice. The WCJ signed a written judgment in conformity with its oral reasons on July 13, 2018. Mitchell timely filed a motion for new trial which the WCJ, following a hearing, denied by judgment dated August 23, 2018. Mitchell appealed, [2] and is now before this court asserting that:

1 The WCJ abused his discretion in refusing to refer the summary judgment motion to a trial on the merits that was only 35 days away when the motion to refer clearly delineated significant factual material issues, which defendant did not dispute.
2 The WCJ erred in granting defendant's motion for summary judgment, failing to thoroughly review the documentary evidence and dismissing plaintiff's claim in its entirety. The grant of summary judgment was erroneously based only on excerpts of plaintiff's deposition, incomplete medical records and without any sworn testimony of plaintiff's treating physician.


In order for an employee to recover benefits under the Worker's Compensation Statutes of the State of Louisiana he must show that he received a personal injury by way of an accident arising out of and in the course and scope of his employment, and said injury necessitated medical treatment and/or rendered the employee either temporary totally disabled, permanent totally disabled, entitled to supplemental earning benefits, and/or permanent partially disabled. LSA-R.S. 23:1021; 1031; 1203; and 1221.

Alfred v. Mid-S. Mach., Inc., 594 So.2d 937, 939 (La.App. 3 Cir. 1992).

A claimant will not be entitled to temporary total disability benefits for time she is employed. . . . A claimant must submit objective medical evidence of the disabling condition to meet his burden of proving entitlement to TTD benefits by clear and convincing evidence.
In Fritz [v. Home Furniture-Lafayette], 95-1705, p. 3-4 [(La.App. 3Cir. 7/24/96), ] 677 So.2d [1132, ] at 1134, we stated:
However, the issue of disability presents a legal not purely a medical, question which must be determined after considering all of the medical and lay testimony in the record. Walker v. Halliburton Services, Inc., 93-722 (La.App. 3 Cir. 3/1/95); 654 So.2d 365, writ denied, 95-1507 (La.9/22/95); 660 So.2d 481. In other words, the hearing officer determines whether a claimant has ...

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